Warning and consultation are part of the same single process of consultation, which should commence with a warning that the employee is at risk.

A security manager was asked to prepare a report on the possibility of contracting out the security function.

The issue was: at what stage the employers could be said to have been proposing to dismiss. The EAT held that this occurred at the time the security manager made his report recommending the contracting out.

The parties needed to establish what fair and proper consultation consisted of.

What is required is consultation when the proposals are still at a formative stage; adequate information and adequate time to respond; and a conscientious consideration by the employer of the response to consultation.

There was a dispute about the relationship between collective and individual consultation in the context of redundancy.

Where no consultation about redundancy has taken place with either the trade union or the employee, the dismissal will normally be unfair, unless the reasonable employer would have concluded that the consultation would be an utterly futile exercise. Consultation with the trade union over the selection criteria does not of itself release the employer from considering with the employee individually his being identified for redundancy.

There was a dispute about the appropriate pool for selecting people for dismissal and the circumstances in which the definition of redundancy would be satisfied.

The following two questions of fact must be answered: (1) Have the requirements of the employer’s business for employees to carry out work of a particular kind ceased or diminished, or were they expected to cease or diminish? (2) Was the dismissal of the employee attributable, wholly or mainly, to this state of affairs?

This case considered the Danish legal interpretation of the term ‘establishment’, which provided that an establishment needed an independent management ‘which can independently effect large-scale dismissals’.

The ECJ held that the existence of such separate management was not necessary. The term applied to the unit to which the workers who have been made redundant are assigned to carry out their duties.

An insolvent employer claimed that the insolvency was a special circumstance obviating the need for consultation in connection with redundancies.

There were three stages to deciding whether there was a defence in any particular case. First, were there special circumstances; second, did they render compliance with the statute not reasonably practicable; and, third, did the employer take all steps towards compliance as were reasonably practicable in the circumstances?

There was a debate about how employers should approach the issue of redundancy consultation when employees are represented by a recognised independent trade union.

Reasonable employers will seek to act as follows: (1) give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions, and, if necessary, find alternative employment in the undertaking or elsewhere; (2) consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria; (3) whether or not an agreement as to the criteria to be adopted has been agreed with the union, seek to establish criteria for selection that so far as possible do not depend solely upon the opinion of the person making the selection but can be checked objectively against such things as attendance record, efficiency at the job, or length of service.